Judges: Groups had no right to sue against effort ruled 'unconstitutional'

Judges: Groups had no right to sue against effort ruled 'unconstitutional'

DETROIT - A Detroit judge's decision to scuttle the Bush administration's program of eavesdropping without warrants was dealt a major setback Friday by a federal appeals court panel, but experts predict that the legal battle is far from over. Despite the 2-1 ruling by the U.S. 6th Circuit Court of Appeals, which said the American Civil Liberties Union and its co-plaintiffs lack legal standing to challenge the antiterrorism program, experts predicted that the plaintiffs would take the fight to the entire appeals court, or ask the U.S. Supreme Court to hear the case. “The ACLU has devoted a lot of resources to this case, and I expect they will continue fighting,” said Carl Tobias, a University of Richmond law professor who has followed the lawsuit. But Tobias and other experts said the ACLU's efforts might be doomed by the conservative slant of the U.S. 6th Circuit and the U.S. Supreme Court. “As a result of today's decision, the Bush administration has been left free to violate the Foreign Intelligence Surveillance Act, which Congress adopted almost 30 years ago to prevent the executive branch from engaging in precisely this kind of unchecked surveillance,” said ACLU Legal Director Steven Shapiro. Shapiro stressed that the decision didn't uphold the legality of the program, only whether the ACLU and other organizations and individuals involved in the suit had legal standing to challenge the program, which the Bush administration created to combat terrorism after the Sept. 11, 2001, attacks. Under the program, the government monitored international phone calls and e-mails of Americans suspected of communicating with al-Qaida operatives. The White House cheered Friday's decision. “We have always believed that the district court's decision declaring the terrorist surveillance program unconstitutional was wrongly decided,” said spokesman Tony Fratto. In January, the administration announced that it had abandoned the warrantless phase of the program and was seeking warrants from the Foreign Intelligence Surveillance Court in Washington, D.C. It remained unclear whether Friday's ruling would prompt the administration to resume eavesdropping without warrants. In the ruling, Circuit Judge Alice Batchelder, a Republican appointee, said the groups lacked standing to sue the National Security Agency because they couldn't prove the program had harmed them, making them eligible to sue. She said the state secrets doctrine, which the government invoked to keep details of the program under wraps, blocked the disclosure of any evidence that might have helped the plaintiffs. Although the plaintiffs said the eavesdropping program had a chilling effect on their ability to communicate with people overseas, Batchelder stressed: “The alternative possibility remains that the NSA might not be intercepting, and might never actually intercept, any communication by any of the plaintiffs named in the lawsuit.”